Bhoop Singh & Anr. v. The Haryana State Electricity Board

Present: Mr.Ashwani Talwar, Advocate, for the petitioners. Mr. Praveen Gupta, Advocate, for Mr. Narender Hooda, Advocate, for the respondents 1 and 2. -----

1. Whether reporters of local papers may be allowed to see the judgment? Yes. To be referred to the reporters or not? No.

2. 3. Whether the judgment should be reported in the digest? Yes. ----- K.Kannan, J (Oral)

1. The petitioners challenge the alleged illegal appointment made by the respondents 1 and 2 to the post of Operator Grade-I and seek themselves as eligible for being considered to the said post. Among the grounds of challenge, formidable as the learned counsel appearing for the petitioners makes it appear, are that the advertisement issued on 26th May, 1988 stipulated the qualification to be three years diploma in Electrical/Mechanical/Electronics/Communication or Section 'A' of AMIE, having one year experience in operation of Thermal Plant of minimum of 50 megawatt capacity; or Matric and two years course in the above trade having 10 years experience in Thermal Plant of minimum Civil Writ Petition No.3485 of 1989 - 2 - 50 megawatt capacity. The persons, who had been appointed and shown as private respondents in the writ petition, according to the petitioners, did not have the requisite number of year of experience and the alleged relaxation said to have been granted, had not been granted at the time of appointment but even as per the showing of the petitioners, the relaxation relating to the experience was made post-facto to the appointment on

20.01.1989, when actually the appointment order had been issued earlier on December 1988. The contention of the learned counsel is, if such relaxation was possible for the respondents, the petitioners, who had been ITI trained and who had 7 years' experience in the same Plant ought to have been granted to them as well by making suitable relaxation. The further contention by the petitioners is that amongst the respondents, respondents 9 and 33 had not even applied to the post but appointment orders are also issued to them. The relaxation itself which was purported to have been done was issued by a Whole Time Member (WTM) and not by the Board itself, as seen from the recitals of the proceedings of the Secretary, HSEB (R-2/3).

2. The statement in defence by the Electricity Board was that the petitioners did not have the necessary qualification and, therefore, they had no right to seek their claim to appointment or canvass correctness of the appointment. It has been also contended on behalf of the Electricity Board that diploma holders with specified years of experience for consideration to the appointment to the post of Operator Grade-I, had not been available in response to the advertisement, but the Thermal Plant Project at Panipat was underway and they required Civil Writ Petition No.3485 of 1989 -3 - immediate hands to fill up the post to carry out the work. It was to meet immediate exigency of appointment and for continuation of work that it was decided to relax the condition relating to experience and recruit persons, who were better qualified than the petitioners. The petitioners did not fall in the same category as the private respondents for the petitioners were ITI trained and they could not compare themselves with diploma holders and relaxation given for diploma holders could not also be claimed by the petitioners. Answering to the objections relating to the appointment of the respondents 9 and 33, it was specifically stated in the written statement that 33rd respondent had applied while as regards the 9th respondent, there was no specific mention at all.

3. The challenge to an appointment process of the year 1989 has unfortunately stood on for 21 years and by the very nature of a prayer that has been sought for, it could not have been normally possible to upset the appointments that have already been made. However, the saving grace is that the petitioners are still in employment and the learned counsel appearing for the petitioners would plead that the posts are still available. The contention that the relaxation which the respondents were prepare to give for appointment to the diploma holders ought to have been extended also to the ITI trained petitioners is not without force for it was for the very same post that they were competing. It is stating the obvious that the diploma holders and ITI trained persons are differently endowed in educational qualifications but if the number of years of experience could have altered the situation to make them eligible for competing for the same post, this relaxation granted only to Civil Writ Petition No.3485 of 1989 - 4 - the diploma holders while denying to the already appointed ITI trained persons and who had about 7 years of experience in the same Thermal Plant, cannot be seen to be just. It is not as if the petitioners had applied for some other posts and the relaxation is sought for other posts. It is for the same category of Operator Grade-II that both the petitioners and the private respondents were competing. Even the manner in which the Electricity Board has brought about the relaxation, although such a power has been reserved in that advertisement subsequent to the actual appointment, does not appear fair. The appointment process seem further flawed by the fact that there is not even an express denial to the statement by the petitioners that the 9th respondent had not even applied but he had been favoured with the appointment.

4. These deficiencies in the appointment process are pointed out not to annul them but bring out the plausibility of the injustice claimed by the petitioners as having been meted out to them. To make the scales even, it is only be appropriate that in view of the plea made by the petitioners that they are still working in the respondents-Board and there are vacancies to the posts, having further regard to the plea made by the counsel for the petitioners even at the time when the matter was admitted by 16.03.1989, the Bench had directed that two vacancies of Operator Grade-I may not be filled and that the Board at some point of time relaxed the condition relating to the experience for all private respondents, who were diploma holders, the Board shall consider the issue of relaxation also for the petitioners and the said exercise shall be taken, discarding the fact that the consideration for filling up the posts by Civil Writ Petition No.3485 of 1989 - 5 - such relaxation is undertaken after so many years. The petitioners themselves are not to be blamed for this delay since the writ petition was filed in the year 1989 immediately after the appointment process has come about but it has come up for disposal only after this length of time. On the consideration of the issue relating to relaxation for the petitioners, it shall be needless to state that the Board will ensure that the petitioners are otherwise eligible. If there is no other disqualification that the petitioners have, they shall be taken as having been appointed on the date when the appointment was given for the other private respondents and their seniority and the scales of pay shall be refixed by such change. If they obtain favourable consideration at the hands of the respondents by virtue of this direction, the petitioners, however, shall not be entitled to any past monetary benefits and they shall operate only prospectively. The respondents shall undertake this exercise within a period of 3 months from the date of the receipt of the copy of this order.

5. The writ petition is disposed of on the above terms.

23.03.2010 sanjeev (K.KANNAN) JUDGE